Bombay High Court
Union Of India, Through ... vs M. K. Gupta And Ors on 4 September, 2017
Bench: R.M. Borde
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N THE HIGH COURT OF JUDICATURE OF BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.6851 OF 2014
01 Union of India,
through the Secretary,
Railway Board, Rail Bhavan,
New Delhi 110 001.
02 Chairman,
Railway Board, Rail Bhavan,
New Delhi 110 001.
03 The General Manager,
Central Railway,
Headquarters Office, CST,
Mumbai 400 001.
04 The General Manager,
Eastern Railway,
Headquarters Office,
Fairlie Place, 17 NS Road,
Kolkata Petitioners
Versus
01 M.K.Gupta,
son of Late Shri Murari Lal Gupta,
age: 55 years (DOB 11.10.1958),
working as Chief Administrative
Officer (Construction),
Central Railway, Headquarters
Office, CST, Mumbai 400 001,
and residing at L-42, Badhwar
Park, Wodehouse Road, Colaba,
Mumbai - 400 005.
02 Shri S.L.Verma,
Divisional Railway Manager
(DRM), Nagpur, South-East
Railway, Office of the Divisional
Railway Manager (DRM),
Nagpur.
03 Shri L.M.Jha,
Chief Administrative Officer
(Construction), South,
Office of Chief Administrative
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Officer ©, East Central Rly,
Mahendru Ghat,
Patna, Bihar 800 004.
04 Shri Sanjeev Mittal, IRSE,
Divisional Railway Manager
(DRM), Hubli, South-Western
Railway, Office of Divisional
Railway Manager (DRM),
Hubli, Karnataka. Respondents
Mr.Anil Singh, Assistant Solicitor General a/w Mr.Suresh Kumar
a/w Ms.Indrayani Deshmukh, advocates for petitioner.
Mr.Sudhir Talsania, Senior Counsel a/w Mr.Rahul Walia, advocate
for Respondents.
WITH
WRIT PETITION NO.8942 OF 2014
01 M.K.Gupta,
son of Late Shri Murari Lal Gupta,
age: 55 years (DOB 11.10.1958),
working as Chief Administrative
Officer (Construction),
Central Railway, Headquarters
Office, CST, Mumbai 400 001,
and residing at L-42, Badhwar
Park, Woodhouse Road, Colaba,
Mumbai - 400 005. Petitioner
Versus
01 Union of India,
through the Secretary,
Railway Board, Rail Bhavan,
New Delhi 110 001.
02 Railway Board,
through its Chairman,
Railway Board, Rail Bhavan,
New Delhi 110 001.
03 The General Manager,
Central Railway,
Headquarters Office, CST,
Mumbai 400 001.
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04 The General Manager,
Eastern Railway,
Headquarters Office,
Fairlie Place, 17 NS Road,
Kolkata, Pin Code-700 001.
05 Shri S.L.Verma,
Divisional Railway Manager
(DRM), Nagpur, South-East
Central Railway, Office of the
Divisional Railway Manager
(DRM), Nagpur 441 111.
06 Shri L.M.Jha,
Chief Administrative Officer
(Construction), South,
Office of Chief Administrative
Officer ©, East Central Rly,
Mahendru Ghat,
Patna, Bihar 800 004.
07 Sanjeev Mittal, IRSE,
Divisional Railway Manager
(DRM), Hubli, South-Western
Railway, Office of Divisional
Railway Manager (DRM),
Hubli, Karnataka,
Pin Code 580 029. Respondents
Mr.Sudhir Talsania, Senior Counsel a/w Mr.Rahul Walia, advocate
for the petitioner.
Mr.Anil Singh, Assistant Solicitor General a/w Mr.Suresh Kumar
a/w Ms.Indrayani Deshmukh, advocates for Respondents No.1 to
4.
WITH
WRIT PETITION NO.12241 OF 2015
01 Union of India,
through the Secretary,
Railway Board, Rail Bhavan,
New Delhi 110 001.
02 Railway Board,
through its Chairman,
Railway Board, Rail Bhavan,
New Delhi 110 001. Petitioners.
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Versus
01 M.K.Gupta,
son of Late Shri Murari Lal Gupta,
age: 57 years (DOB 11.10.1958),
working as Chief Administrative
Officer (Construction),
Central Railway, Headquarters
Office, CST, Mumbai 400 001,
and residing at L-42, Badhwar
Park, Woodhouse Road, Colaba,
Mumbai - 400 005,
State of Maharashtra.
02 Department of Personnel and
Training (DOPT),
through its Secretary,
North Block, New Delhi 110 001.
03 Appointment Committee of
Cabinet (ACC) through
Establishment Officer DOPT,
North Block,
New Delhi 110 001. Respondents
Mr.Anil Singh, Additional Solicitor General a/w Mr.Suresh Kumar
a/w Ms.Indrayani Deshmukh, advocates for petitioner.
Mr.Sudhir Talsania, Senior Counsel a/w Mr.Rahul Walia, advocate
for Respondent No.1.
CORAM : R.M.BORDE AND
A.S.GADKARI, JJ.
RESERVED ON : 15th February, 2017.
PRONOUNCED ON : 4th September,2017.
JUDGMENT (Per R.M.Borde, J.) :
1 Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 Writ Petition No.6851 of 2014 has been presented by
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the Union of India through the Secretary, Railway Board and other
3 petitioners seeking a writ of certiorari or any other appropriate
writ, order or direction for quashing the order dated 14.02.2014
passed by the Central Administrative Tribunal in Original
Application No.522 of 2013. Whereas, Writ Petition No.12241 of
2015 has been presented by the Union of India seeking to quash
the order dated 06.11.2015, passed by the Central Administrative
Tribunal in Misc. Application No.779/2015 in Original Application
No.425/2015.
3 Respondent No.1-employee, in the petition presented
by Union of India, has approached this Court by presenting Writ
Petition No.8942 of 2014, praying to quash and set aside impugned
para 9(vi) of the order dated 14.02.2014, passed by the Central
Administrative Tribunal. Respondent No.1 is also questioning
validity of the orders dated 27.08.2013 and 07.08.2013, passed by
the petitioner-Railways. Respondent No.1 has also sought for a
declaration that he is eligible for promotion to the post of General
Manager (Open Line) and that working on the post of Divisional
Railway Manager (DRM) is not an eligibility condition under 1986
Rules. Respondent No.1 further seeks to quash the declaration
"not eligible" recorded in the impugned ACR/APAR forms of the
petitioner with regard to eligibility for consideration to the post of
General Manager (Open Line) and to direct the respondents to
replace the remark "not eligible" with a remark "eligible or fit" for
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the said post. Respondent No.1 has also made a prayer to quash
the order dated 12.09.2014, passed by the Central Administrative
Tribunal in Review Petition No.22 of 2014 in O.A. No.522 of 2013.
4 Parties herein are referred to as per their status
recorded in Writ Petition No.6851 of 2014 presented by Union of
India.
5 Respondent No.1 was appointed as a Group-A Officer
on the basis of Combined Engineering Services Examination
conducted in 1979 by the Union Public Service Commission. After
successful declaration in the selection process, Respondent No.1
joined Indian Railways on 16.01.1981. Respondent No.1, as on the
date of presentation of the petition, is functioning as Chief
Administrative Officer (Construction) in Central Railways, which is
a Higher Administrative Grade (HAG) post. Respondent No.1, while
functioning as Chief Engineer (TP), Central Railways, was issued a
major penalty charge sheet. The Inquiry Officer, during the course
of inquiry, exonerated him of all the charges. However, he was
issued a disagreement note by the employer and was compulsorily
retired vide order dated 21.04.2005.
6 Respondent No.1-employee objected to the adverse
order by presenting Original Application to the Central
Administrative Tribunal bearing No.315 of 2005, which came to be
allowed by the Tribunal and the order directing imposition of
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penalty was quashed and set aside on 12.02.2007.
7 The Railway administration presented Writ Petition
No.12395 of 2007 challenging the judgment and order passed by
the Central Administrative Tribunal, Mumbai. The petition
presented to this Court was heard and disposed of on 19.04.2007.
While dealing with the petition, the Division Bench has observed
that the impugned order of the Tribunal, not for the reasons
recorded, but otherwise on account of procedural infirmities in the
inquiry proceedings, the memo dated 31.10.2003 and the order
dated 21.04.2005 are quashed and set aside. The matter came to
be remanded to the Member, Engineering Railway Board, to take
steps in accordance with procedure applicable to Respondent No.1
from the stage of findings recorded by the Inquiry Officer. This
Court directed the petitioner-Railways to complete disciplinary
proceedings and pass order, according to law, within six months.
8 The employer, however, did not adhere to the time
frame and took action only after about 44 months. The charge
sheet issued by the employer was dropped and Respondent No.1
was exonerated of all the charges. In the meanwhile, juniors of
respondent no.1 were posted as Divisional Railway Manager (DRM).
Respondent No.1 was not posted as DRM only on account of
pendency of inquiry proceedings against him. Respondent No.1
made several representations to the employer requesting to give
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him posting as DRM. It is only after exoneration of the petitioner
of all the charges in the year 2010, he was shortlisted for posting as
a Divisional Railway Manager (DRM) in and around April 2011.
However, his name was not included in the posting order dated
07.04.2011. Respondent No.1 made representation agitating his
non selection as DRM. He was, however, adjudged "not eligible" for
consideration to the post of GM (OL) and such an entry has been
recorded in his ACR/APAR for the year ending March 2013.
Respondent No.1, however, was adjudged fit for other post of
General Manager. The request of Respondent No.1, made through
representations for holding him eligible for the post of General
Manager (Open Line), has been turned down by the employer by
orders dated 27.08.2013 and 07.08.2013. Respondent No.1
approached the Tribunal seeking to quash adverse entries in
ACR/APAR recording his ineligibility for promotion to the post of
General Manager (Open Line) and Assistant General Manager. The
Tribunal passed an interim order on consideration of application
tendered by Respondent No.1 directing the employer to consider
claim of Respondent No.1-employee for posting him as DRM so as
to make him eligible for consideration of his claim for promotion to
the post of General Manager (Open Line). The interim order passed
by the Tribunal on 21.10.2013 was not complied with and letter was
issued to Respondent No.1 rejecting the contentions raised while
granting interim relief. The Central Administrative Tribunal, after
hearing the parties, proceeded to decide the Original Application
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and allowed the same partly by an order dated 14.02.2014. The
Tribunal directed the employer to offer posting as DMR to
Respondent No.1 so as to give him exposure required to be
considered for the post of General Manager (Open Line). It is
further ordered that in case the employer do not post him as DMR,
it will not stand in his way for claiming the post of General
Manager (Open Line). It is further directed that this particular
handicap will not be held against him since the Railways are
squarely responsible for not finalizing the disciplinary proceedings
against Respondent No.1 and thereby depriving him an opportunity
of working as DMR as per his turn. An application seeking review
of the order was presented by Respondent No.1. However,
application seeking review came to be rejected by the Central
Administrative Tribunal.
9 It is the principal stand of the petitioner - railways
that, the respondent is ineligible for consideration for promotion to
the post of General Manager (OL), as he has not worked as DRM.
According to the petitioner, an officer in the cadre of SAG can be
posted as DRM; whereas, since the petitioner was being considered
for promotion to HAG, he was not posted as DRM as on 7.4.2011.
The respondent / employee was listed at Sr. No.1 as per the panel,
prepared in January/February 2011 for consideration of posting as
a DRM. However, since the railway administration had taken a
decision to consider the respondent for promotion to HAG, as he
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was not posted as DRM. It must be noted that, in fact, the
respondent received his HAG promotion only in August/September,
2011 and the process of consideration for posting as DRM was
initiated in the month of April, 2011. The respondent could not
have been denied posting as DRM, which is crucial for his
consideration for promotion to the post of General Manager (OL),
on the ground that, he is being considered for promotion to HAG.
In fact, even the DPC for HAG was not held on 7.4.2011, so far as
the respondent is concerned. Thus the stand adopted by the
Railway administration does not appear to be sound.
10 Another contention raised by the petitioner is that, the
posts of AGM/GM(OL) are not promotional posts and that the post
of General Manager (OL) is an ex-cadre post. The respondent
employee, according to the petitioner, cannot claim
posting/promotion to an ex-cadre post. The petitioner, at the same
time contends that, the posting of an employee as a DRM is crucial
for his consideration for promotion to the post of General Manager
(OL). On one hand, the respondent has not been considered for
posting as DRM on the pretext that he is being considered for
promotion to HAG and in fact is being denied promotion as General
Manager (OL) merely because, the petitioner does not have
experience to function as DRM. The defence of the petitioner thus
appear to be contradictory.
11 Another contention raised by the petitioner is that, the
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age limit prescribed for the posting as DRM is 52 years and the
respondent is over-aged. It must be recorded that, in the year 2007,
the High Court, while allowing the petition presented by the
Railway authority, directed to take decision within a period of six
months from the date of the order. The decision was rendered by
the High Court on 19.4.2007. The railway administration took
about 44 months for taking decision and ultimately, dropped
charges leveled against the respondent. In the meanwhile, juniors
to the respondent were promoted. Though the respondent insisted
for his posting as DRM since 2010, his claim was not considered
and ultimately, he was denied posting as DRM on the ground that
he is being considered for promotion to higher administrative
grade. The department thus, by not posting the respondent as
DRM has taken away his chance of being considered for the post of
AGM/ General Manager (OL). Firstly, the petitioner railway
administration took 44 months for taking decision and secondly,
denied the respondent posting as DRM on the ground that he is
being considered for higher post. Now, it would not be appropriate
for the Railway administration to take a stand that respondent
could not be considered for posting as D RM since he has crossed
52 years of age.
12 So far as the requirement under the relevant Rules,
framed by the railway administration for promotion to the post of
General Manager (OL) is concerned, there is no mandate under the
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scheme that for consideration of promotion to the post of General
Manager (OL) and equivalent in the railways, an employee shall
mandatorily be posted as DRM. The eligibility criteria for making
promotion to the post of GM and equivalent in the railways is laid
down in Rule No.7 which reads thus:-
" 7. Eligibility Criteria
7.1 Officers belonging to the Railway Services listed in
Appendix-II will be eligible for consideration by the Selection
Committee.
7.2 For being considered every such officer should on 1 st
July of the year in which selection is made:
(i) Be less than 58 years of age;
(ii) have put in not less than 25 years of regular
continuous service including period of probation, if
any, in a Group 'A' Service listed in Appendix-II
(iii) have put in a minimum of five years service in
the Senior Administrative Grade, including service
rendered in higher grade posts, if any
7.3 Only such of the empaneled officers would be
considered for appointment to the post of General
Manager/equivalent who are left with a minimum
service of 2 years or more from the date of occurrence
of the vacancy falling in their turn and for which they
have been cleared."
13 There is no mandate under the Rules that a candidate
shall have the experience of DRM before he can be considered for
promotion to the post of General Manager (OL). Appendix-I
prescribes various posts of GM and equivalent which also includes
the post of General Manager (OL) for which, there is no separate or
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different or distinct criteria laid down or set out for the post of
General Manager (OL) as opposed to other GMs listed in Appendix
I. The method for consideration for promotion to the post is listed
in Appendix-I. It is provided that the selection committee set up in
accordance with paragraph 5 of the scheme will consider on merit
eligible officers of the Railway Services listed in Appendix II, their
interse seniority and prepare a panel of officers considered suitable
in all respects for promotion to the post of General Manager and
equivalent. The Selection Committee may also recommend the
specific type/types of assignment for which a particular officer
mentioned in the panel may be considered suitable.
14 Paragraph 6 of the Rules deals with the assessment of
suitability of the candidate. Further on adjudging the suitability of
the officers, it is provided that due consideration will be given to
the performance of the candidates as DRM and as principal Head
of the Department. According to the respondent, it is not
mandatory for being judged as eligible for an officer to work as
DRM before being considered for the post of General Manager (OL)
or any other GM's post or equivalent. The respondent has been
declared fit and eligible for consideration for the post of General
Manager (OL). The respondent was listed at Sr.No.1 for
consideration of his posting as DRM. However, he was not
considered. The respondent is also declared fit and eligible for
consideration to the post of GM and at one point of time, the
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superior authority of the railway department had declared the
respondent fit and eligible for being considered for the post of
General Manager (OL). However, at later point of time, the
reviewing authority recorded endorsement on the ACR/APAR that
since the respondent has not worked as DRM, he is not eligible for
the post of General Manager (OL). According to the respondent, the
decision of petitioner, adjudging respondent as ineligible for the
post of General Manager (OL) only because he has not worked as
DRM is de-horse the rules.
15 Even if the stand taken by the railways that the long
standing practice of promotion as General Manager (OL) from
amongst the officers, who have gained experience to function as
DRM has to be considered, it must be noted that, on one hand,
Railway department did not extend an opportunity to the petitioner
to function as DMR and on the other hand, the respondent is being
denied promotion to the post of General Manager (OL) merely on
the said ground. The High Court, while disposing of the Writ
Petition, directed the petitioner Railways to take decision within a
period of six months and the department took about 44 months to
take decision. In the meanwhile, employees junior to the
respondent, were promoted to the post of DRM and the respondent
was denied opportunity. Even after reinstatement of the
respondent in the year 2010, he was not posted as DRM on the
ground that he was being considered for HAG promotion. The
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Tribunal, by an order dated 2.10.2013 directed the petitioner -
Railway department to consider the claim of the petitioner for
posting him as DRM to fulfill the criteria of promotion to the post
of General Manager (OL) however, the Railway department did not
comply with the directions of the Central Administrative Tribunal
(CAT) and refused opportunity to the respondent to function as
DRM on the ground that, he was then being considered for
promotion to HAG. It also must be noted that the respondent was
considered eligible for DRM and his name was enlisted by the
selection panel. So far as promotion of respondent to the post of
General Manager (OL) is concerned, the committee ought to have
considered that the record i.e. APAR/ACR reveals that the
respondent is declared to be fit for the post of DRM, AGM and
General Manager (OL), though in the peculiar circumstances, he
could not be posted as DRM and got his HAG promotion. The
higher authorities i.e. the Executive General Manager as well as
the Member, Engineering Railway Board, while writing the ACRs,
declared the respondent fit for the post of DRM, AGM, General
Manager (OL). This finding as recorded by the Railway authorities,
accepted by the accepting authority had also been confirmed by
the Chairman, Railway Board on 25.12.2012. The annual
confidential reports for the subsequent period, however, declared
the respondent unfit for posting as GM(OL), since he had not
worked as DRM. The accepting authority, the Chairman, Railway
Board has recorded the endorsement on the relevant ACRs/APAR
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although the reviewing authority agreed, that the respondent has
the merit and eligibility to work as General Manager (OL). It is
further recommended by the Member, Engineering Railway Board
that, in order to prepare the respondent for posting as General
Manager (OL), he may be posted as AGM. The petitioner thus
appears to have denied opportunity to respondent to function as
General Manager (OL), merely because the respondent was not
posted as DRM. As has been recorded above, on one hand, the
petitioner denied respondent to work as DRM and on the other
hand, though he is found suitable to function as General Manager
(OL) and though the authorities have found the respondent to be
the most efficient employee, having required merit and eligibility to
function as General Manager (OL), he is denied the opportunity of
promotion. It would, thus be not open for the petitioner to deny the
respondent promotion as General Manager (OL) on the ground
that, he has not worked as DRM. In the circumstances, though the
respondent was found eligible, for the posting as DRM and though
his name was listed at Sr.No.1 by the selection committee, having
failed to post him as DRM, it is not open for the petitioner to take a
contradictory stand and to deny the benefits to the respondent. It
is not a matter of doubt that, an officer functioning as General
Manager (OL) can only be considered for the posting as the
Member of the Railway Board. Thus, denying the respondent
promotion to the post of General Manager (OL), will have an
adverse impact in respect of his chances of becoming the Member
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of the railway board.
16 It is also worthy to be noted that, though the
respondent made representations, requesting the petitioner
Railway to post him as DRM, his request was not considered.
Respondent though offered to function as DRM in spite of his
promotion to HAG, has been denied the opportunity under the
pretext that he is placed in HAG group. The interim order issued by
the CAT directing the petitioner Railways to post the petitioner as
DRM so as to extend him an opportunity to gain experience of the
post, has also been turned down on the flimsy ground that
respondent is functioning as HAG. If the employee who is
functioning in the higher grade, voluntarily accepts, as in the
instant case, to work on the lower post, there was no reason for
denying the opportunity. It is not a matter of doubt that
respondent was eligible for posting as DRM. He was placed at Sr.
No.1 in the selection list at the relevant time, however, he was not
considered. The respondent was also held eligible for posting as
General Manager (OL) despite noticing the fact that he has not
worked as DRM at one point of time. In the peculiar facts of the
case, the finding that the respondent is otherwise fit for
functioning as GM(OL) except for the reason that the respondent
did not work as DRM, he cannot be denied the opportunity. It is
recorded in the ACR/APR that the respondent is an efficient officer
and is well-suited to shoulder the responsibility of the post of
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General Manager (OL). In the peculiar fats of the case, therefore, it
is logical that the respondent shall be directed to consider the
respondent for promotion to the post of General Manager (OL).
17 It is also interesting to consider that the seniority of
the respondent has always been maintained and he does not lose
the seniority merely because he has not worked as DRM. The
appointment of the GM and equivalent is governed by paragraph
No.4 of the Rules. It is provided under rule 4.1 as:-
" 4 Method
4.1 A panel of names for consideration for appointment to the
posts of General Manager and equivalent, listed in appendix I to the
Scheme, shall be prepared by a Selection Committee set up in
accordance with para 5 of the Scheme. For this purpose, the
Selection Committee shall consider on merit, eligible officers of each
of the Railway Services listed in appendix-II, having regard to their
inter-se seniority as well as their seniority in the respective Services
- officers working in Higher Administrative Grade (Rs.22,400 -
24,500) being placed above, those working in Senior
Administrative Grade (Rs.18,400 - 22,40)being placed above those
working in Senior Administrative Grade (Rs.18,400 - 24,500) being
paced above those working in Senior Administrative Grade
(Rs.18,400 - 22,400/-) in each respective Service and prepare a
panel of officers considered suitable in all respects for appointment
to the posts of General Manager and equivalent. The Selection
Committee may also recommend the specific type/types of
assignment for which a particular officer mentioned in the panel
may be considered suitable. "
18 It thus appears that, for consideration for appointment
to the post of General Manager and equivalent, under the scheme,
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seniority cum merit is the criteria. There is no doubt that
respondent is the senior officer and is suitable for being considered
for the post of G.M. (OL).
19 It is tried to be contended that, since the respondent
has accepted the promotion in HAG, he cannot now make a
grievance about denial to post him as DRM. According to the
petitioner, the respondent employee is not eligible for being
considered as General Manager (OL), since he has not worked as
DRM. There arises no question of estoppal for the reason that
before promoting the respondent in HAG, he requested the
Railways to consider him for the post of DRM. Even in 2013, the
respondent expressed his willingness to function as DRM in spite
of his promotion in HAG. However, the request made by the
respondent was not considered at the relevant time. Therefore, it
would not be equitable to allow the petitioner to take a stand that
respondent cannot be considered for promotion as General
Manager (OL), since he has not functioned as DRM. It is the
petitioner Railways, which denied opportunity to the respondent to
gain requisite experience as DRM and as such, it would be
inappropriate for them to deny the promotional opportunity to the
respondent. Apart from this, respondent is found to be fit and
suitable for posting as AGM, GM(OL). The finding recorded by the
Assessing Authority could not have been reviewed by the Chairman
- Railway Board within a span of few months. On earlier occasion,
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the Chairman, Railway Board has approved the report of the
assessing authority as regards the suitability of the respondent for
the post of General Manager (OL). There are no reasons recorded
as to why, there is shift in the stand by the Chairman, Railway
Board. The petitioner having found the respondent suitable and fit
for promotion to the post of GM (OL), denying the opportunity on
the ground that the respondent has not functioned as DRM which
opportunity was denied by the Railways on more than one
occasion and without any fault on the part of the respondent does
not appear to be bonafide.
20 Reliance is placed on the Judgment in the matter of
Union of India versus K.V. Jankiraman (1991 (4) SCC 109). The
Honourable Supreme Court of India has held that if an officer is
exonerated of all charges, then he would get his due promotion
from the day his immediate junior came to be promoted.
21 The argument of the petitioner that the respondent
was not considered for promotion, since he was over-aged from
2011 onwards, is unacceptable for the reason, that the respondent
ought to have been considered for posting as DRM in 2011 and till
the year 2015, he was eligible for being considered. The right/
entitlement was accrued to the respondent in the year 2011. There
was sufficient time for the Railways to take a decision within four
years until the date, the respondent crossed age bar of 52 years.
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22 In the matter of S.B. Bhattacharjee versus S.D.
Majumdar and others (2007 (10) SCC 513), it is ruled that though
a person has no fundamental right in terms of article 16 of the
Constitution of India, he has every right to be considered thereof.
An effective and meaningful consideration is postulated thereby the
terms and conditions of service of an employee including his right
to be considered for promotion indisputably are governed by the
Rules framed under the proviso appended to Article 309 of the
Constitution of India.
23 In the instant matter, though the respondent may not
have right to seek direction to post him as GM(OL), he is entitled to
seek direction to the petitioner to consider him for the post of
General Manager (OL). In the light of peculiar facts and
circumstances of this case, the failure of the petitioner Railways to
post the respondent as DRM shall not come in the way of
respondent for being considered for promotion to the post of
General Manager (OL). The Tribunal issued directions to the
petitioner - Railway to post the respondent as DRM to give him
exposure required to be considered as General Manager (OL). It is
further ordered that, in case the petitioner do not post him as
DRM, it will not stand in the way of respondent for being
considered for the post of General Manager (OL). The directions
were issued by the Tribunal in 2013. The petitioner railway, did not
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post the respondent as DRM in furtherance of the directions
issued by the Tribunal. The Tribunal, by issuing directions at an
interlocutory stage before final decision, had also issued similar
directions to the Railways, however, under the pretext that the
respondent has crossed 52 years of age, he was not considered for
posting as DRM. In fact, it ought to have been considered that the
respondent became eligible, in terms of his seniority long back i.e.
in 2007 itself. Even after conclusion of the departmental
proceedings initiated against him in the year 2010, he could have
been considered. The respondent Railways took 44 months for
taking decision in respect of the departmental proceedings and
thereby diminished the chances of the respondent for further
promotion which in itself cannot come in the way of the respondent
and shall not be construed as a bar. The Tribunal had already
issued directions to the Railways that in the event, the respondent
could not be considered for posting as DRM as directed, that itself
shall not come in his way of offering promotion to the post of GM
(OL).
24 In the instant matter, at this stage, it would not be
possible to issue directions to petitioner to post the respondent as
DRM, however, merely because he was not promoted as DRM, it
shall not come in his way of being considered for the post of GM
(OL). This view, we have taken, in the peculiar facts and
circumstances, since the respondent was considered eligible at the
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relevant time for the post of DRM and was enlisted at Sr.No.1 by
the selection panel. At one point of time, the superior authorities
in the Railway department considered the respondent fit and
eligible for promotion to the post of GM(OL) though he has not
functioned as DRM. The service record of the respondent has not
been doubted. The relevant service Regulations do not create any
bar for consideration of the respondent for the post of GM (OL).
Merely on the ground that he was not offered an opportunity to
function as DRM, even if the established practice is of considering
the officers who have functioned as DRM, the same cannot be
pressed into service in the instant matter for the reason that it is
the petitioner - railways took 44 months time for finalizing the
departmental enquiry proceedings and did not consider the
respondent at appropriate time for posting as DRM, though he was
enlisted at Sr.No.1 by selection panel.
25 For the reasons recorded above, we direct the
petitioner/railway administration to consider the claim of the
respondent for promotion to the post of GM (OL) and the
endorsement in the service record by the Railways in respect of his
in-eligibility on the ground that he has not functioned as DRM
shall not be an impediment for his consideration to the
promotional post, if he is otherwise found eligible. The Judgment &
Order passed by the CAT stands modified to the extent as specified
above. The Writ petition presented by the petitioner as well as the
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respondent employee stand disposed of accordingly.
26 Rule is made absolute to the extent as specified above.
27 There shall be no order as to costs.
28 In view of disposal of W.P.No.6851/2014 and
W.P.No.8942/2014, WP No.12241/2015 deserves no consideration
and stand disposed of.
(A.S.GADKARI, J.) (R.M.BORDE,J)
vbd
